VALDES v. STATE, 528 So.2d 94 (Fla.App. 1 Dist. 1988)

MANUEL RICARDO VALDES, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 87-1052.District Court of Appeal of Florida, First District.
July 7, 1988.

Appeal from the Circuit Court, Duval County, John D. Southwood, J.

Manuel Gonzalez, Jr., Miami, for appellant.

Robert A. Butterworth, Atty. Gen. and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant contests the imposition of two 25-year-concurrent sentences for the offenses of trafficking and conspiracy to traffic in cocaine in an amount more than 400 grams. He contends that although the departure sentences imposed were the

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product of negotiation, because the trial court failed to assign written reasons for the departure,[1] the sentences must be vacated and the cause remanded for resentencing. We affirm, following the rule that plea bargain sentences are generally considered valid reasons for departure. See Denmark v. State, 519 So.2d 20 (Fla. 1st DCA 1987), review pending, Case No. 71,744 (Fla.); Quarterman v. State, 506 So.2d 50 (Fla. 2d DCA 1987).

In Denmark v. State, while affirming, we observed that there was certain language in Williams v. State, 500 So.2d 501, 503 (Fla. 1986), suggesting that a plea agreement for a defendant to be sentenced outside the guidelines may not constitute a valid reason to depart from the recommended range. Accordingly, we certified the question to the Florida Supreme Court as one of great public importance. Identical to the position taken i Denmark, we certify the following question to the Florida Supreme Court as one of great public importance:

IN LIGHT OF WILLIAMS V. STATE, 500 So.2d 501 (Fla. 1986), MAY A TRIAL JUDGE EXCEED THE RECOMMENDED GUIDELINES SENTENCE BASED UPON A LEGITIMATE AND UNCOERCED CONDITION OF A PLEA BARGAIN?

AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.

BOOTH, J., specially concurs.

[1] The guideline range for appellant’s primary offenses was five-and-one-half to seven years, a range less than the mandatory minimum sentence of fifteen provided for appellant’s offenses See § 893.135(1)(b)(3), Fla. Stat. The mandatory sentence of course supplants the recommended sentence, see Florida Rule of Criminal Procedure 3.701 d.9., and therefore, if the mandatory sentence had been exacted, no departure reasons were required to be given. Because, however, the sentences imposed exceeded the mandatory minimum, a departure reason should normally be given unless — as held in the case law authority cited infra — the sentence is the result of a plea bargain.

BOOTH, Judge, specially concurring.

I would affirm the judgment and sentences below.

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